# C_2020077EN.01001401.xml

| 9.3.2020 | EN | Official Journal of the European Union | C 77/14 |
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9.3.2020

EN

Official Journal of the European Union

C 77/14

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Request for a preliminary ruling from the Juzgado de lo Social de Madrid (Spain) lodged on 17 July 2019 — EV v Obras y Servicios Públicos, S.A. and Acciona Agua, S.A.

(Case C-550/19)

(2020/C 77/20)

Language of the case: Spanish

Referring court

Juzgado de lo Social de Madrid

Parties to the main proceedings

Applicant: EV

Defendants: Obras y Servicios Públicos, S.A.,

Acciona Agua, S.A.

Questions referred

| 1. | Must Clause 4(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, incorporated into EU law by Council Directive 1999/70 (1) and Directive 2001/23, be interpreted to the effect that there is no objective ground to justify the collective agreement for the construction sector (Article 24(2) of which provides that the first paragraph of Article 15(1)(a) of the Estatuto de los Trabajadores (‘Workers’ Statute’) is not to apply, irrespective of the length of the general project contract for a given construction project, and that workers are to retain the status of ‘workers on a fixed-term contract for a specific construction project’, both in the circumstances referred to in that provision and where one undertaking succeeds another, as provided for in Article 44 of the Workers’ Statute, or in the case of the transfer of workers under Article 27 of the collective agreement) contravening Spanish national legislation (under which, pursuant to Article 15(1)(a) of the Workers’ Statute, ‘such contracts may not be for a period of more than 3 years, which may be extended by up to 12 months by a national sectoral collective agreement or, if there is no such agreement, by a lower-level sectoral collective agreement. On the expiry of those periods, workers shall acquire the status of permanent workers of the employer’)? |
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1.

Must Clause 4(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, incorporated into EU law by Council Directive 1999/70 (1) and Directive 2001/23, be interpreted to the effect that there is no objective ground to justify the collective agreement for the construction sector (Article 24(2) of which provides that the first paragraph of Article 15(1)(a) of the Estatuto de los Trabajadores (‘Workers’ Statute’) is not to apply, irrespective of the length of the general project contract for a given construction project, and that workers are to retain the status of ‘workers on a fixed-term contract for a specific construction project’, both in the circumstances referred to in that provision and where one undertaking succeeds another, as provided for in Article 44 of the Workers’ Statute, or in the case of the transfer of workers under Article 27 of the collective agreement) contravening Spanish national legislation (under which, pursuant to Article 15(1)(a) of the Workers’ Statute, ‘such contracts may not be for a period of more than 3 years, which may be extended by up to 12 months by a national sectoral collective agreement or, if there is no such agreement, by a lower-level sectoral collective agreement. On the expiry of those periods, workers shall acquire the status of permanent workers of the employer’)?

| 2. | Must Clause 4(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, incorporated into EU law by Council Directive 1999/70 and Directive 2001/23, be interpreted to the effect that there is no objective ground to justify the collective agreement for the construction sector (Article 24(5) of which provides that where a worker is hired for different work positions on two or more fixed-term contracts for a specific construction project with the same undertaking or group of undertakings within the period and for the duration laid down in Article 15(5) of the Workers’ Statute, the said worker is not to acquire the status provided for in Article 15(5) of the Workers’ Statute, both in the circumstances referred to in that provision and where one undertaking succeeds another, as provided for in Article 44 of the Workers’ Statute, or in the case of the transfer of workers under Article 27 of the collective agreement) contravening Spanish national legislation (under which Article 15(5) of the Workers’ Statute provides that ‘Without prejudice to the provisions of paragraphs 1(a), 2 and 3, workers who have been engaged, with or without interruption, for longer than 24 months over a period of 30 months in the same or a different work position with the same undertaking or group of undertakings on two or more temporary contracts, regardless of whether the workers have entered into the contracts directly or have been supplied by temporary employment agencies or whether the same or different fixed-term conditions apply to the said contracts, shall acquire the status of permanent workers. The provisions of the previous paragraph shall also apply where one undertaking succeeds another or in the case of the transfer of workers in accordance with provisions laid down by statute or in collective agreements’)? |
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2.

Must Clause 4(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, incorporated into EU law by Council Directive 1999/70 and Directive 2001/23, be interpreted to the effect that there is no objective ground to justify the collective agreement for the construction sector (Article 24(5) of which provides that where a worker is hired for different work positions on two or more fixed-term contracts for a specific construction project with the same undertaking or group of undertakings within the period and for the duration laid down in Article 15(5) of the Workers’ Statute, the said worker is not to acquire the status provided for in Article 15(5) of the Workers’ Statute, both in the circumstances referred to in that provision and where one undertaking succeeds another, as provided for in Article 44 of the Workers’ Statute, or in the case of the transfer of workers under Article 27 of the collective agreement) contravening Spanish national legislation (under which Article 15(5) of the Workers’ Statute provides that ‘Without prejudice to the provisions of paragraphs 1(a), 2 and 3, workers who have been engaged, with or without interruption, for longer than 24 months over a period of 30 months in the same or a different work position with the same undertaking or group of undertakings on two or more temporary contracts, regardless of whether the workers have entered into the contracts directly or have been supplied by temporary employment agencies or whether the same or different fixed-term conditions apply to the said contracts, shall acquire the status of permanent workers. The provisions of the previous paragraph shall also apply where one undertaking succeeds another or in the case of the transfer of workers in accordance with provisions laid down by statute or in collective agreements’)?

| 3. | Must Article 3(1) of Directive 2001/23 (2) be interpreted as precluding a situation in which, under the collective agreement for the construction sector, the rights and obligations that are to be respected by the new employing undertaking or entity that is taking on the contracted activities are to be restricted solely to those arising under the last contract concluded by the worker with the outgoing undertaking, and as meaning that that does not constitute an objective ground that justifies the collective agreement for the construction sector contravening Spanish national legislation, under which, pursuant to Article 44 of the Workers’ Statute, all rights and obligations of the previous employer are transferred, not merely those arising under the most recent contract? |
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3.

Must Article 3(1) of Directive 2001/23 (2) be interpreted as precluding a situation in which, under the collective agreement for the construction sector, the rights and obligations that are to be respected by the new employing undertaking or entity that is taking on the contracted activities are to be restricted solely to those arising under the last contract concluded by the worker with the outgoing undertaking, and as meaning that that does not constitute an objective ground that justifies the collective agreement for the construction sector contravening Spanish national legislation, under which, pursuant to Article 44 of the Workers’ Statute, all rights and obligations of the previous employer are transferred, not merely those arising under the most recent contract?

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(1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

(2)  Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).

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